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The courtrooom cast after presidential reference

The judges who delivered the SC’s opinion on the presidential reference on the 2G verdict’s implications; the lawyers (and the politician-litigant) who argued on either side

Written by Maneesh Chhibber |
October 1, 2012 1:00:31 am

THE BENCH

S H Kapadia

The law-clerk-who-rose-to-become-the-CJI,Justice Kapadia retired last week. A reformist,Kapadia will be remembered for judgments by his bench that went a long way towards providing a level playing field for foreign companies doing business in India. Cases in point are the Vodafone tax case and the Balco case dealing with arbitration involving foreign companies and their Indian partners/government.

D K Jain

Justice Jain,who retires in January next year,is the judge who authored the 145-page majority opinion that was delivered on Thursday. Jain,the third senior-most judge of the Supreme Court,was also part of the Constitution bench that decided the Balco case.

Jagdish Singh Khehar

The soft-spoken judge,who is in line to take over as country’s first Sikh CJI in January 2017,is known for his grasp of constitutional issues. While the main part of the opinion in the presidential reference was authored by Justice Jain,Justice Khehar wrote a further 63 pages that,among various things,categorically said that “no part of the natural resource can be dissipated as a matter of largess,charity,donation or endowment,for private exploitation”.

Ranjan Gogoi

A former chief justice of Punjab and Haryana High Court,Justice Gogoi is in line to succeed Justice Dipak Misra as CJI in October 2018,the first one from the Northeast.

Dipak Misra

A former chief justice of Delhi High Court,Justice Misra will be the CJI after Justice Khehar. He is currently part of the bench hearing the Koodankulam nuclear plant matter.

POLITICIAN-LITIGANT

Subramanian Swamy

The Janata Party chief,who was one of the petitioners in the 2G case and argued in person,told the bench that the presidential reference was “yet another attempt to delay the implementation of the directions in the 2G case”.

THE LAWYERS

Goolam E Vahanvati

The Attorney General carried out the task of convincing the five-judge bench that the presidential reference was maintainable in law. To stress the need to improve the investment climate,Vahanvati quoted US President Barack Obama’s remarks on the issue of FDI in India,telling the court that the country would become a “laughing stock” if auction was made the only route for allocation of natural resources. “Why will anybody come to India if it is going to be challenged in the Supreme Court (if any other method is adopted for allocating resources)?” Vahanvati said,a stand that found support from industry bodies such as CII and FICCI. It was Vahanvati who told the court that revenue maximisation could not be the sole objective in allocating natural resources.

Soli Sorabjee

Appearing for the Centre for Public Interest Litigation,the Constitution expert and former attorney general raised the issue of the reference being an attempt by the government to question the correctness of the judgment by a two-judge bench in the 2G case. “Under the garb of the presidential reference,you (government) are seeking to question the correctness of the judgment and seeking to overrule the judgment which has reached its finality,” Sorabjee said in court.

Prashant Bhushan

The activist-lawyer,who was instrumental in getting the court to set aside the 122 2G licences allotted by the A Raja-headed telecom ministry,opposed the presidential reference. He told the court that while the government clearly understood that the 2G judgment had laid down the procedure to be followed while alienating precious natural resources,it was trying to use the advisory jurisdiction of the court as an appeal against the 2G decision. During a hearing in July,Bhushan told the court that the government’s objective in filing the reference was to continue with “this opaque,non-competitive and arbitrary method of allocation of natural resources” and contended “this malafide reference should be rejected”. However,CJI Kapadia remarked that the court couldn’t reject the reference on the ground that it was malafide and misleading.

T R Andhyarujina

He represented the Federation of Indian Mineral Industries. While raising the issue of “apparent conflict” between provisions of the statutes and the 2G judgment,he asked the bench to dispel all uncertainties regarding the position of law. Andhyarujina told the court that apart from its direction that spectrum should be sold by way of auction,the other observations made in the 2G judgment was “obiter” and “per incuriam” and the court could overrule the verdict in its advisory jurisdiction.

Harish Salve

He argued that the under the Constitution,the President can seek an opinion from the court “on any question of law or fact that has arisen,or is likely to arise”,adding that there is no additional condition that there should be any “doubt” in the mind of the President. Appearing for CII,Salve asserted the 2G verdict was specific to spectrum allocation and it couldn’t be applied to all natural resources. He said allocation of natural resources should be decided case by case.

C S Sundram

The counsel for FICCI urged the bench to respond favourably to the presidential reference,saying the opinion of the apex court would clear the uncertainty prevailing in the industry over the issue of allocation of natural resources. He told the court that the 2G verdict had “international implications” and that the court had entered the domain of policy-making by holding the first-come-first-served policy illegal.

Darius Khambata

The Maharashtra advocate general told the court the observations by the two-judge bench in the 2G judgment were made only with regard to spectrum,thereby leaving it open to the five-judge bench to examine the issue with regard to alienation of other natural resources. Pointing to some state laws,which provide for methods other than auction,he urged the court to say the 2G judgment doesn’t pertain to alienation of all natural resources through auction only.

Sunil Gupta

Appearing for Uttar Pradesh,the senior advocate said the issue of a reference being maintainable at the instance of the President was different from the judicial power of the court to answer or not to answer the questions posed in the reference.

Ravindra Shrivastava

Arguing for Chhattisgarh,he told the bench that “neither history supports nor reality warrants auction to be a rule of disposal of all natural resources in all situations”. The counsel for the BJP-ruled state said the state must be allowed the choice of methodology of allocation,especially in cases where it intends to “incentivise investments and job creation in backward regions that would otherwise have been left untouched by private players if resources were given at market prices”.

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